Case 2:18-cv-00928-MJP Document 83 Filed 10/18/18 Page 1 of 12 The Honorable Marsha J. Pechman 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 11 12 13 14 YOLANY PADILLA, on behalf of herself and her 6-year-old son J.A.; IBIS GUZMAN, on behalf of herself and her 5-year-old son R.G.; BLANCA ORANTES, on behalf of herself and her 8-year-old son A.M.; BALTAZAR VASQUEZ, on behalf of himself; Plaintiffs-Petitioners, v. No. 2:18-cv-928 MJP DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES 15 16 17 18 19 20 21 22 23 24 25 26 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); U.S. CITIZENSHIP AND IMMIGRATION SERVICES (“USCIS”); EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (“EOIR”); THOMAS HOMAN, Acting Director of ICE; KIRSTJEN NIELSEN, Secretary of DHS; KEVIN K. McALEENAN, Acting Commissioner of CBP; L. FRANCIS CISSNA, Director of USCIS; MARC J. MOORE, Seattle Field Office Director, ICE, JEFFERSON BEAUREGARD SESSIONS III, United States Attorney General; LOWELL CLARK, warden of the Northwest Detention Center in Tacoma, Washington; CHARLES INGRAM, warden of the Federal Detention Center in SeaTac, Washington; DAVID SHINN, warden of the Federal Correctional Institute in Victorville, California; JAMES JANECKA, warden of the Adelanto Detention Facility; NOTE ON MOTION CALENDAR: OCTOBER 26, 2018. Defendants-Respondents. 27 28 i DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 83 Filed 10/18/18 Page 2 of 12 1 INTRODUCTION 2 Defendants respectfully request that this Court hold this case in abeyance and grant relief 3 from all deadlines pending the Attorney General’s forthcoming decision in Matter of M-S-, 27 4 I&N Dec. 476 (A.G. 2018), because it bears directly on the issues before the Court in Plaintiffs’ 5 pending motions for preliminary injunction (ECF 45) and class certification (ECF 37), and 6 Defendants’ motion to dismiss (ECF 36). 7 In this case, Plaintiffs assert two primary claims: (1) that the failure to provide aliens who 8 have recently come to this country with pending credible fear interviews within ten days violates 9 their constitutional and statutory rights (the CFI class), and (2) that aliens apprehended after 10 crossing the border illegally who are found to have a credible fear have a constitutional and 11 statutory right to a bond hearing within seven days of requesting one, in accordance with their 12 preferred procedures (the bond hearing class). See Complaint, ¶¶ 146-171. Plaintiffs concede that 13 the bond hearing class’s claims depend on a Board of Immigration Appeals (Board) decision, 14 Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), which held that aliens, like Plaintiffs, who are 15 subject to mandatory detention under 8 U.S.C. § 1225(b) may, if found to have a credible fear, 16 request a bond hearing under 8 U.S.C. § 1226(a). See ECF 45 at 3-4 & n.2 (“Proposed [bond 17 hearing] class members are eligible for bond hearings [under] the X-K- decision”); id. at 17 18 (“Pursuant to 8 U.S.C. § 1226(a), Plaintiffs have a right to a bond hearing to determine whether 19 they should be released.”). 20 Since the filing of the amended complaint, the continued validity of Matter of X-K- has 21 become subject to review before the Attorney General. See Matter of M-S-, 27 I&N Dec. 476 (A.G. 22 2018). On October 12, 2018, the Attorney General, exercising authority delegated to him by 23 Congress, see 8 U.S.C. § 1103(a), indicated an intention to review whether Matter of X-K- “should 24 be overruled in light of Jennings v. Rodriguez, 138 S. Ct. 830 (2018).” See id. Briefing in Matter 25 of M-S- will conclude on November 9, 2018, and a decision will issue thereafter. See id. The 26 Attorney General’s decision, as Plaintiffs implicitly concede, may resolve all issues with respect 27 to the bond hearing class now pending before this court in three separate motions. See ECF 45 at 28 4 n.2 (“Proposed class members are eligible for bond hearings [under Matter of X-K-] unless and 1 DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 83 Filed 10/18/18 Page 3 of 12 1 until the decision is vacated.”) (emphasis added). That is because, if Matter of X-K- is overruled, 2 Plaintiffs will generally have no entitlement to a bond hearing at all absent extraordinary individual 3 circumstances, let alone within seven days, as explained below. 4 An abeyance of this case will thus ensure that this Court is fully informed by the Attorney 5 General’s decision when this Court considers the legal issues raised by the proposed bond hearing 6 class presented in the three motions now pending before this Court. Moreover, given the pendency 7 of Matter of M-S-, and that it may resolve in whole or in part the bond hearing class’s legal issues, 8 an abeyance would conserve the resources of both the Court and the parties. See El Rescate Legal 9 Services, Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 747 (9th Cir. 1992) 10 (Agency “might take action that would render unnecessary [the Court’s] consideration of 11 constitutional issues.”). Finally, because none of the named Plaintiffs suffer any actual harm at 12 present, neither party will be harmed by an abeyance. 13 14 BACKGROUND I. Legal Background. 15 Named Plaintiffs and the Bond Hearing Class are all aliens who entered the United States 16 unlawfully without inspection and were apprehended shortly thereafter. At the time they were 17 apprehended, Plaintiffs were subject to expedited removal under 8 U.S.C. § 1225(b)(1), which 18 provides that aliens arriving in the United States lacking documents permitting entry, or willfully 19 misrepresenting a material fact to procure admission, may be removed expeditiously without full 20 removal proceedings. That statute permits the Secretary of Homeland Security to apply expedited 21 removal to aliens arriving at the ports of entry, and “certain other aliens,” who are apprehended 22 after crossing the border illegally. Id. Currently those “certain other aliens” include aliens 23 “encountered within 14 days of entry without inspection and within 100 air miles of any U.S. 24 international land border. 8 U.S.C. § 1225(b)(1)(A)(i) & (iii); 69 Fed. Reg. 48877-01 (Aug. 11, 25 2004); 82 Fed. Reg. 4902 (Jan. 17, 2017). Aliens subject to this procedure “shall be detained” until 26 removed. 8 U.S.C. § 1225(b)(1)(B)(iii)(IV). 27 If aliens subject to expedited removal, including “certain other aliens,” indicate an intention 28 to apply for asylum or express a fear of persecution or torture if returned to their native country, 2 DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 83 Filed 10/18/18 Page 4 of 12 1 they are referred for an interview with an asylum officer with U.S. Citizenship and Immigration 2 Services (“USCIS”), to determine if they have a credible fear of persecution or torture. Id. § 3 1225(b)(1)(A)(ii) & (B)(ii); 8 C.F.R. § 208.30(d). By statute, “[a]ny alien subject to the procedures 4 under [section 1225(b)(1)] shall be detained pending a final determination of credible fear of 5 persecution and, if found to not have such a fear, until removed.” 8 U.S.C. § 1225(b)(1)(B)(iii)(IV). 6 Section 1226(a) governs the detention and release of other aliens arrested inside the United 7 States not subject to the expedited removal procedures. 8 U.S.C. § 1226(a). Every alien detained 8 under this section is individually considered for release on bond by DHS and served with a custody 9 determination form. 8 C.F.R. § 236.1(c)(8). If the officer denies bond (or sets a bond the alien 10 thinks is too high), the alien may ask an IJ for a redetermination by checking a box on the custody 11 determination form. 8 C.F.R. §§ 236.1(d)(1), 1003.19, 1236.1(d)(1). The alien may appeal the IJ’s 12 custody redetermination to the BIA. 8 C.F.R. § 236.1(d)(3)(i), 1236.1(d)(3)(i). An alien who 13 remains detained under section 1226(a) may later obtain another custody determination whenever 14 “circumstances have changed materially since the prior bond redetermination.” 8 C.F.R. 15 § 1003.19(e). There is no limit to the number of bond hearings an alien may obtain on the basis of 16 changed circumstances. 17 II. Matter of X-K-. 18 Pursuant to a Board decision, Matter of X-K-, 23 I. & N. Dec. 731 (BIA 2005), aliens who 19 entered the country illegally, were apprehended between ports of entry, placed in expedited 20 removal, found to have a credible fear, and who would otherwise be subject to mandatory detention 21 under section 1225(b), receive a bond hearing under 8 U.S.C. § 1226(a). In concluding that bond 22 hearings could be held, the Board found ambiguity in the statute and applicable regulations, and 23 ultimately concluded that 8 C.F.R. § 1236.1(d)(1), which implements 8 U.S.C. § 1226(a), applied. 24 Matter of X-K-, 23 I. & N. Dec. 731 (“Immigration Judges have jurisdiction ‘to exercise the 25 authority in section 236 of the Act [8 U.S.C. § 1226] … to detain the alien in custody, release the 26 alien, and determine the amount of bond … as provided in § 1003.19”) (citing 8 C.F.R. § 27 1236.1(d)(1)). The Board distinguished aliens who present themselves at a port of entry (who 28 cannot receive a bond hearing even after they establish a credible fear) and those who are 3 DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 83 Filed 10/18/18 Page 5 of 12 1 apprehended between ports of entry—i.e., aliens who have crossed the border illegally and been 2 promptly apprehended—who may be treated under the immigration statutes as either subject to 3 mandatory detention under section 1225(b) or as subject to bond hearing detention under section 4 12236(a); the Board further interpreted the existing regulations to provide for bond hearings in 5 these circumstances. 6 III. Rodriguez v. Jennings. 7 In 2018, the Supreme Court issued Jennings v. Rodriguez, 138 S.Ct. 830 (2018). The 8 decision reversed the Ninth Circuit’s decision holding that aliens detained under section 1225(b) 9 were entitled to bond hearings, Rodriguez v. Robbins, 804 F.3d 1050 (9th Cir. 2015) (reversed). 10 As relevant here, the Supreme Court analyzed the statutory text of section 1225. Finding it “clear,” 11 the Court said: 12 Read most naturally, §§ 1225(b)(1) and (b)(2) thus mandate detention of applicants for admission until certain proceedings have concluded. Section 1225(b)(1) aliens are detained for “further consideration of the application for asylum,” and § 1225(b)(2) aliens are in turn detained for “[removal] proceeding[s].” Once those proceedings end, detention under § 1225(b) must end as well. Until that point, however, nothing in the statutory text imposes any limit on the length of detention. And neither § 1225(b)(1) nor § 1225(b)(2) says anything whatsoever about bond hearings. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Jennings, 131 S.Ct. at 842. The petitioners in Jennings also argued that based on the text of the statute, sections 1225(b)(1) and (b)(2) only authorized detention until the beginning of proceedings, and that the government must therefore detain them under section 1226(a) once their proceedings began. Id. The Supreme Court flatly rejected this contention, finding it “inconsistent with ordinary English usage and [] incompatible with the rest of the statute.” Id. at 845. Thus, the Supreme Court held that “[i]In sum, §§ 1225(b)(1) and (b)(2) mandate detention of aliens throughout the completion of applicable proceedings and not just until the moment those proceedings begin.” Id. IV. Attorney General Review of Matter of X-K-. The Attorney General, as the head of the Executive Office for Immigration Review, may refer immigration cases to himself for review, and render legal determinations on “questions of 28 4 DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 83 Filed 10/18/18 Page 6 of 12 1 law” presented by those cases. See 8 U.S.C. § 1103(a)(1), (describing the Attorney General’s 2 authority to issue “determination[s] and ruling[s]” on “questions of law” arising under the INA, in 3 the process of “review[ing] such administrative determinations in immigration proceedings,” Id. § 4 1103(g)(2)); see INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999). 5 On September 18, 2018, the Attorney General referred Matter of M-G-G-, to himself for 6 review pursuant to 8 C.F.R. § 1003.1(h)(1)(i). Matter of M-G-G-, 27 I&N Dec. 469 (A.G. 2018). 7 As a part of that referral, the Attorney General invited the parties to the case, as well as interested 8 amici, to submit briefs relevant to the disposition of the case, including on the following issue: 9 12 Whether Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), which held that immigration judges may hold bond hearings for certain aliens screened from expedited removal proceedings under section 235(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1), into removal proceedings under section 240, 8 U.S.C. § 1229a, should be overruled in light of Jennings v. Rodriguez, 138 S. Ct. 830 (2018). 13 Id. Amicus briefs were to be due October 16, 2018. However, on October 12, 2018, the Attorney 14 General announced that he would not review the Board’s determination in Matter of M-G-G-, 15 because the alien in that case had been removed pursuant to a final order of removal. Matter of M- 16 G-G-, 27 I&N Dec. 475 (A.G. 2018). On the same date, the Attorney General directed the Board 17 to refer Matter of M-S- to him for review. Matter of M-S-, 27 I&N Dec. 476 (A.G. 2018). As a part 18 of that referral, the Attorney General again invited the parties and interested amici to submit briefs 19 addressing the same issue—whether Matter of X-K- should be overruled in light of Jennings. Id. 20 The parties’ briefs in that case are due on November 2, 2018, and interested amici may submit 21 briefs by November 9, 2018, after which the Attorney General will issue a decision in the case. Id. 22 The Attorney General’s decision “with respect to all questions of law shall be controlling.” 8 23 U.S.C. § 1103(a)(1). Thus, the Attorney General will soon render a decision on whether Matter of 24 X-K- remains valid, and his decision will be “controlling.” Id. 10 11 25 ARGUMENT 26 I. 27 This Court should place this case in abeyance pending the Attorney General’s decision in 28 Matter of M-S-, because his decision in that case may resolve the bond hearing class’s claims in Abeyance Would Conserve Judicial Resources 5 DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 83 Filed 10/18/18 Page 7 of 12 1 whole or in part. That is because absent the continued validity of Matter of X-K-, Plaintiffs and the 2 proposed class would be subject to mandatory detention under 8 U.S.C. § 1225(b)(1)(B)(ii) 3 without the availability of bond hearings. See Jennings v. Rodriguez, 131 S. Ct. 830, 845 (2018). 4 Instead, release from custody would be through the discretionary parole process. 8 U.S.C. § 5 1182(d)(5)(A); 8 C.F.R. § 215.5(b). And there is no dispute that Plaintiffs could not continue to 6 argue for an entitlement to a bond hearing within seven days if they were detained pursuant to 7 section 1225(b)(2). Id. (“In sum, §§ 1225(b)(1) and (b)(2) mandate detention of aliens throughout 8 the completion of applicable proceedings and not just until the moment those proceedings begin.”). 9 Even under prior law in the Ninth Circuit, since reversed by the Supreme Court, Plaintiffs would 10 not be eligible for a bond hearing before at least six months of detention had accrued, rendering 11 their claim for bond hearings within seven days clearly foreclosed if Matter of X-K- is revised or 12 reversed. Rodriguez v. Robbins, 804 F.3d 1050 (9th Cir. 2015) (reversed). 13 Thus, the parties agree on at least one critical point: the Attorney General’s forthcoming 14 decision likely impacts any determination by this Court concerning whether Plaintiffs are entitled 15 to bond hearings within seven days as a constitutional or statutory matter. Indeed, Plaintiffs 16 themselves concede their claims depend on the ongoing viability of Matter of X-K-. ECF 45 at 3 17 n.2 (“Proposed [bond hearing] class members are eligible for bond hearings unless and until the 18 decision is vacated.”). 19 Because the Attorney General will be exercising his delegate, plenary authority over 20 matters of law under the INA, see 8 U.S.C. § 1103(a)(1), and because the Board’s decision in 21 Matter X-K- was premised on the Board’s view that the relevant statutory and regulatory scheme 22 was ambiguous, the Attorney General’s decision will be entitled to Chevron deference. See, e.g., 23 INS v. Aguirre–Aguirre, 526 U.S. 415, 425 (1999). Thus, any decision by this Court on the merits 24 prior to the Attorney General’s will cease to be controlling when the Attorney General issues his 25 decision. See, e.g., Brand X, 545 U.S. at 982-83 (an agency’s reasonable resolution of an 26 ambiguous statutory provision trumps the court’s prior, inconsistent resolution of the ambiguity). 27 For similar reasons, should this Court rule on Plaintiffs’ claims prior to the Attorney General’s 28 decision, it is very likely that either or both parties would seek reconsideration or appeal this 6 DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 83 Filed 10/18/18 Page 8 of 12 1 Court’s decision in light of the Attorney General’s decision, thereby expending resources of both 2 the Court and the parties that could be preserved by litigating the issue once, after the Attorney 3 General issues his precedent decision. See McMenemy v. Colonial First Lending Grp., Inc., No. 4 2:14-CV-001482, 2015 WL 1137344, at *2 (E.D. Cal. Mar. 12, 2015) (holding that absent a stay, 5 there is a “substantial risk of duplication of proceedings and waste of judicial resources”); CMAX, 6 Inc. v Hall, 300 F.2d 265, 268 (9th Cir. 1962) (a stay can serve “the orderly course of justice” by 7 “simplifying” the issues.”). 8 Because Plaintiffs’ claims would be foreclosed in whole or in part if the Attorney General 9 overrules Matter of X-K-, this Court may never even have to reach the merits of Plaintiffs’ motion 10 for preliminary injunction, and thus a stay would promote an efficient use of juridical resources.1 11 If the Court “do[es] not decide it now, [it] may never need to. Not only does this rationale protect 12 the expenditure of judicial resources, but it comports with [the Court’s] theoretical role as the 13 governmental branch of last resort. Article III courts should not make decisions unless they have 14 to.” National Treasure Employees Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996) 15 (citing Allen v. Wright, 468 U.S. 737, 752 (1984)). Allowing the Attorney General to issue his 16 decision first will, as in many agency contexts, allow the agency to potentially “take action that 17 would render unnecessary [the Court’s] consideration of constitutional issues.” See El Rescate, 18 959 F.2d at 747. And that is true regardless of whether the agency may rule on a constitutional 19 issue in the first instance, because an agency may review “the many threshold questions that may 20 accompany a constitutional claim and to which the [agency] can apply its expertise,” thereby 21 obviating the need for an Article III court to reach the issue at all. See Elgin v. Dep't of Treasury, 22 567 U.S. 1, 22, (2012). 23 Furthermore, in issuing his decision, the Attorney General, as the head of EOIR, “can bring 24 [his] expertise to bear upon the matter; [he] can evaluate the evidence; [he] can make an initial 25 determination; and, in doing so, [he] can, through informed discussion and analysis, help a court 26 27 28 1 If Plaintiffs are no longer entitled to a bond hearing at all after the Attorney General’s decision, their claims regarding the procedures to be applied in their bond hearings will necessarily be moot. 7 DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 83 Filed 10/18/18 Page 9 of 12 1 later determine whether its decision exceeds the leeway that the law provides.” INS v. Ventura, 2 537 U.S. 12, 17 (2002). And, because the Attorney General has solicited amicus briefs, he will 3 have the benefit of thorough briefing from all interested parties before him,2 unlike this Court. 4 Thus, staying this case until the Attorney General issues his decision may avoid unnecessary and 5 possibly premature litigation. See, e.g., US WEST Communs., Inc. v. MFS Intelenet, Inc., 193 F.3d 6 1112, 1118 (9th Cir. 1999) (noting “the court's interests in avoiding unnecessary adjudication and 7 in deciding issues in a concrete setting”); see also Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 8 726, 735-36 (1998) (“[F]rom the agency’s perspective, immediate judicial review . . . could hinder 9 agency efforts to refine its policies” and “interfere with the system that Congress specified for the 10 agency to reach forest logging decisions”). 11 A stay will also “avoid possible inconsistent decisions.” Sims v. AT&T Mobility Servs. 12 LLC, No. 2:12-CV-02702-JAM-AC, 2013 WL 753496, at *8 (E.D. Cal. Feb. 27, 2013). The 13 Court’s decisions on the motion for preliminary injunction may be inconsistent with the Attorney 14 General’s decision, requiring the parties to brief—and the Court to consider—the impact of the 15 Attorney General’s decision on its past ruling, and potentially causing confusion in the 16 implementation and execution of either a preliminary injunction order, or the Attorney General’s 17 decision. 18 Finally, the issue of whether aliens detained under section 1225(b) are eligible for a bond 19 hearing at all, and if so, when—as well as the proper allocation of the burden of proof—is currently 20 being litigated before the Ninth Circuit on remand from the Supreme Court. See Rodriguez v. 21 Jennings, 887 F.3d 954 (Mem.) (9th Cir. 2018). Thus, this Court should stay resolution of that 22 claim for that independent reason. See Rodriguez v. Jennings, 887 F.3d 954 (Mem.) (9th Cir. 2018). 23 II. 24 A stay does not benefit or harm either party. First, the named Plaintiffs have all received 25 bond hearings already, and in fact have been released from immigration custody. See generally 26 Motion to Dismiss. And the proposed Bond Hearing Class will continue to receive bond hearings An abeyance will not harm any party. 27 28 2 Indeed, Plaintiffs’ counsel in this case may choose to file a brief before the Attorney General. 8 DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 83 Filed 10/18/18 Page 10 of 12 1 under Matter of X-K- while that case remains valid, as Plaintiffs acknowledge. See ECF 45 at 4 2 n.2 (“Proposed class members are eligible for bond hearings unless and until the decision is 3 vacated.”). If the Attorney General revisits Matter of X-K- and reaffirms the holding, nothing will 4 have changed for Plaintiffs, and this Court can proceed with resolution of the merits of the pending 5 motions fully informed that the Attorney General has issued a “controlling” decision that aliens 6 such as Plaintiffs are entitled to bond hearings under section 1226(a). See 8 U.S.C. § 1103(a)(1). 7 Should the Attorney General overturn Matter of X-K-, and hold that aliens such as Plaintiffs remain 8 detained under section 1225(b)(2), and are thus not entitled to a bond hearing under section 9 1226(a), Plaintiffs’ claims for a bond hearing would be foreclosed, as discussed above. See 10 Jennings v. Rodriguez, 138 S. Ct. 830, 845 (2018). Either way, staying proceedings ensures that 11 the Court and the parties do not expend resources unnecessarily litigating an issue which may no 12 longer even need resolution before this Court, and even if it does, would be greatly informed by 13 the Court’s consideration of the Attorney General’s forthcoming decision. See, e.g., Alaska Right 14 to Life Political Action Comm. v. Feldman, 504 F.3d 840, 849 (9th Cir. 2007) (“we conclude that 15 the district court should have declined to exercise jurisdiction on prudential ripeness grounds, 16 given the inadequately developed record and the absence of a showing that withholding 17 jurisdiction would impose hardship on the parties.”). 18 Furthermore, Defendants anticipate that any stay or abeyance would be brief. The Attorney 19 General has set a deadline of November 9, 2018, for interested amici to submit briefs. See Matter 20 of M-S-, 27 I&N Dec. 476 (A.G. 2018). After that, he will take the case under consideration and 21 issue a decision. Although Defendants cannot provide a timeline as to when he will issue a 22 decision, because briefing on this motion for preliminary injunction will not be complete until 23 October 26, 2018,3 and the instant motion is noted for that same date, Defendants anticipate that 24 3 25 26 27 28 Additionally, the motion to dismiss and motion for class certification remain pending at this time. Defendants contend that it would be appropriate for the Court to resolve the motion to dismiss prior to turning to the motion for preliminary injunction, as if the case is subject to dismissal, consideration of the motion to dismiss first would conserve the resources of the Court. Even if this Court did not grant the motion to dismiss, it should also resolve the motion for class certification before the motion for preliminary injunction, so that it may understand that scope of any relief. 9 DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 83 Filed 10/18/18 Page 11 of 12 1 any stay would be minimal. 2 Accordingly, because the issues presented in Plaintiffs’ motion for preliminary injunction 3 (and the two other pending motions now before the court) are closely intertwined with, and 4 potentially will be resolved by, Matter of M-S-, presently pending before the Attorney General for 5 review, the Court should place this case in abeyance and grant relief from all deadlines so that the 6 Attorney General may exercise his authority to decide a legal issue bearing directly upon resolution 7 of those motions. 8 Dated: October 18, 2018 Respectfully submitted, 9 JOSEPH H. HUNT Assistant Attorney General Civil Division 10 11 WILLIAM C. PEACHEY Director Office of Immigration Litigation, District Court Section 12 13 14 EREZ REUVENI Assistant Director 15 16 /s/Lauren Bingham LAUREN BINGHAM, Fl. Bar No. 105745 Trial Attorney Office of Immigration Litigation, District Court Section United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 616-4458 Lauren.C.Bingham@usdoj.gov 17 18 19 20 21 22 23 JOSEPH DARROW Trial Attorney 24 Counsel for Defendants 25 26 27 28 Furthermore, if class certification is denied, there is no preliminary relief to issue, as both proposed Bond Hearing class representatives have already received their bond hearings and been released. The propriety of resolving these two pending motions first underscores the brief nature of any stay. 10 DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 83 Filed 10/18/18 Page 12 of 12 CERTIFICATE OF SERVICE 1 2 3 I HEREBY CERTIFY that on October 18, 2018, I electronically filed the foregoing 4 document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document 5 is being served this day on all counsel of record or pro se parties via transmission of Notices of 6 Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or 7 8 parties who are not authorized to receive electronically filed Notices of Electronic Filing. 9 10 /s/ Lauren Bingham Trial Attorney United States Department of Justice 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 Case 2:18-cv-00928-MJP Document 83-1 Filed 10/18/18 Page 1 of 1 1 [PROPOSED] ORDER 2 3 4 5 6 7 This matter having come before the Court on Defendants’ motion for relief from deadlines, Plaintiffs’ response, and Defendants’ reply, upon due consideration Defendants’ motion is HEREBY GRANTED. This case is placed in abeyance until the Attorney General issues his decision in Matter of M-S-, 27, I&N Dec. 476 (A.G. 2018). 8 Defendants are hereby ORDERED to notify this Court within three business days of the 9 Attorney General’s decision in Matter of M-S-. The parties are further ORDERED to submit a joint 10 status report detailing whether additional briefing is necessary within 14 days of Defendants’ 11 notice of decision. 12 13 DATED this day of _________________, 2018. 14 15 16 _____________________________________ 17 THE HONORABLE MARSHA J. PECHMAN 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458